Sundus Shaker SALEH, on behalf of herself and those similarly situated, Plaintiff-Appellant, v. George W. BUSH; Richard B. Cheney; Donald Rumsfeld; Condoleezza Rice; Colin Powell; Paul Wolfowitz; Does 1-10, inclusive; and the United States of America, Defendants-Appellees.
No. 15-15098
United States Court of Appeals, Ninth Circuit.
Argued and Submitted December 12, 2016. Filed February 10, 2017
848 F.3d 880
Patrick G. Nemeroff (argued) and Matthew M. Collette, Attorneys, Appellate Staff; Melinda Haag, United States Attorney; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.
Jerome Paul Wallingford, San Diego, California, for Amicus Curiae Lawyers for International Law.
Rajeev E. Ananda, New York, New York, for Amicus Curiae Planethood Foundation.
Before: SUSAN P. GRABER and ANDREW D. HURWITZ, Circuit Judges, and RICHARD F. BOULWARE,** District Judge.
OPINION
GRABER, Circuit Judge:
Plaintiff Sundus Shaker Saleh sues several individuals who served as high-ranking officials in the administration of President George W. Bush.1 Plaintiff claims that
FACTUAL AND PROCEDURAL HISTORY 1
In 2003, Kurdish Army troops forced Plaintiff and her family to leave their home in Jalawla, Iraq, and flee to Baghdad. The troops, who were aligned with the United States, were taking part in what has become known as the Iraq War, a military action that officially began on March 19, 2003, but that, Plaintiff claims, Defendants2 had been planning for years. Plain
Plaintiff claims that Defendants Cheney, Rumsfeld, and Wolfowitz began advocating for an invasion of Iraq and for the removal of Iraqi President Saddam Hussein from power as early as 1997. In January 1998, Rumsfeld and Wolfowitz sent President Clinton a letter urging him to “implement a ‘strategy for removing Saddam‘s regime from power,’ which included a ‘willingness to undertake military action as diplomacy is clearly failing.‘” (Emphasis in complaint.) They sent a similar letter to Speaker of the House Newt Gingrich and Senate Majority Leader Trent Lott later that year.
Defendant Bush became President in January 2001, and appointed the other Defendants to high-ranking positions within his administration. According to Plaintiff, Defendants almost immediately began to discuss a possible invasion and occupation of Iraq, with Defendant Rumsfeld stating at an early National Security Council meeting that “what we really want to think about is going after Saddam.” As then-Treasury Secretary Paul O‘Neill later put it:
From the start, we were building the case against Hussein and looking at how we could take him out and change Iraq into a new country. And, if we did that, it would solve everything. It was all about finding a way to do it. That was the tone of it. The President saying, “Fine. Go find me a way to do this.” (Emphasis in complaint.)
According to Plaintiff, the September 11, 2001 attacks provided Defendants with a pretext to launch an invasion of Iraq. Defendants Wolfowitz and Rumsfeld “openly pushed for war against Iraq” on the day of the attacks, despite the lack of evidence tying Iraq to the attacks. Defendant Bush was less eager to take action without evidence of a link between Iraq and the September 11 attackers. He asked various officials to “go back over everything” to try to find evidence that Saddam Hussein had been involved with Al Qaeda. Over the course of the next year or so, Defendants began planning for the invasion of Iraq, even as they struggled to find such a link.
Beginning around August 2002, Defendants allegedly mounted a coordinated campaign to convince “the public, the Congress and the allies of the need to confront the threat from Saddam Hussein.” As part of that campaign, Defendants and others “continually used fabricated intelligence from unreliable sources in order to prep the public for an invasion of Iraq.” For instance, Defendant Bush claimed in his 2003 State of the Union address that Iraq had tried to “obtain large quantities of uranium from Africa,” despite the fact that this claim was “unconfirmed and highly unlikely.” During that time period, Defendants also continued to plan for an invasion of Iraq. According to Plaintiff, Defendants were committed to the invasion whether or not the United Nations approved of the action and whether or not United Nations inspectors uncovered evidence that Iraq was developing nuclear weapons.
On March 7, 2003, International Atomic Energy Agency Director General Mohamed ElBaradei “reported to the UN Security Council that there was no indication ‘of resumed nuclear activities,’ ‘that Iraq has attempted to import uranium,’ [or] ‘that Iraq has attempted to import aluminum tubes for use in centrifuge enrichment.‘” Nonetheless, less than two weeks later, the United States invaded
Plaintiff brought this action in 2013. She alleges that Defendants’ conduct in planning and executing the Iraq War amounted to the “crime of aggression” and a conspiracy to commit the crime of aggression,3 which she claims was a violation of the “law of nations” within the meaning of the ATS. After she filed an amended complaint in September 2013, the United States filed a certification that Defendants had been “acting within the scope of their federal office or employment at the time of the incidents [at issue] in this matter.” Under
STANDARDS OF REVIEW
“We review the dismissal [for lack of subject matter jurisdiction] and the denial of the challenge to certification de novo. . . . We review the decision whether to conduct an evidentiary hearing for abuse of discretion.” McLachlan, 261 F.3d at 910 (footnote omitted).
DISCUSSION
The Alien Tort Statute grants “district courts . . . original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
Plaintiff asks us to recognize a violation of the norm against aggression as an ATS tort. We need not decide that issue. Assuming, without deciding, that engaging in aggression constitutes an ATS tort,4 Plaintiff‘s claims against Defendants nonetheless fail, because Congress has granted Defendants official immunity from those claims. The only proper defendant in this case is therefore the United States, and Plaintiff‘s claims against the United States are barred because Plaintiff failed to exhaust administrative remedies as required by the FTCA.
We first address the question whether Defendants are entitled to immunity under the terms of the Westfall Act. We then address Plaintiff‘s argument that, even if the Westfall Act purports to confer immunity on Defendants, immunity cannot attach because Plaintiff has alleged that Defendants violated a jus cogens norm of international law.5
A. Defendants’ Official Immunity Under the Westfall Act
“The concept of the immunity of government officers from personal liability springs from the same root considerations that generated the doctrine of sovereign immunity. While the latter doctrine—that the ‘King can do no wrong‘—did not protect all government officers from personal liability, the common law soon recognized the necessity of permitting officials to perform their official functions free from the threat of suits for personal liability.” Scheuer v. Rhodes, 416 U.S. 232, 239 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). “[T]he scope of absolute official immunity afforded federal employees is a matter of federal law, to be formulated by
The Westfall Act,6 which was enacted in response to the Supreme Court‘s decision in Westfall, “accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties.” Osborn v. Haley, 549 U.S. 225, 229 (2007). The immunity extends to both “negligent” and “wrongful” “act[s] or omission[s] of any employee . . . acting within the scope of his office or employment.”
The Westfall Act provides a procedure by which the federal government determines whether an employee is entitled to immunity. When a current or former federal employee is sued and the employee believes that he is entitled to official immunity, he is instructed to “deliver . . . all process served upon him . . . to his immediate supervisor” or other designated official, who then “furnish[es] copies of the pleadings and process therein to the United States attorney for the district embracing the place wherein the proceeding is brought, to the Attorney General, and to the head of his employing Federal agency.”
The Westfall Act does not provide immunity to an official from a suit “brought for a violation of the Constitution of the
But Plaintiff argues that Defendants’ actions were not taken within the scope of their employment and that, therefore, they are not entitled to immunity under the Westfall Act in the first place. Plaintiff‘s argument embraces two distinct theories. The first theory is that Defendants in this case acted outside the scope of their employment because they (1) started planning the attack on Iraq before they ever took office, (2) attacked Iraq out of personal motives, and (3) were not employed to instigate an unlawful war. The second theory is that the scope-of-employment inquiry under the Westfall Act must be conducted with an eye toward the United States’ treaty obligations. That is, the statute should not be construed to allow an act to be deemed “official” when the United States has entered into treaties condemning that same act. We will address those two theories in turn, and we will then address Plaintiff‘s challenge to the district court‘s denial of her request for an evidentiary hearing concerning the scope certification.
1. The Scope-of-Employment Test
“The Attorney General‘s decision regarding scope of employment certification [under the Westfall Act] is conclusive unless challenged. Accordingly, the party seeking review bears the burden of presenting evidence and disproving the Attorney General‘s decision to grant or deny scope of employment certification by a preponderance of the evidence.” Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993) (per curiam). “To rebut the [scope] certification . . . , a plaintiff must ‘allege sufficient facts that, taken as true, would establish that the defendant‘s actions exceeded the scope of his employment.‘” Wuterich v. Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009) (brackets omitted) (quoting Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir. 2003)). “[W]here a plaintiff fails to allege sufficient facts to rebut the certification, the United States must be substituted as the defendant. . . .” Id.
As noted above, when determining whether a federal officer‘s actions fall within “the scope of his office or employment” for purposes of the Westfall Act, we apply “the principles of respondeat superior of the state in which the alleged tort occurred.” Pelletier, 968 F.2d at 876. We agree with the parties that the respondeat superior law of the District of Columbia applies in this case.
District of Columbia courts routinely “look[] to the Restatement (Second) of Agency” in determining whether an employee‘s actions fall within the scope of employment. Rasul v. Myers, 512 F.3d 644, 655 (D.C. Cir. 2008) (internal quotation marks omitted), vacated, 555 U.S. 1083 (2008), reinstated in relevant part, 563 F.3d 527, 528-29 (D.C. Cir. 2009) (per curiam). “The Restatement provides [that]: ‘(1) Conduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master[;] and (d) if force is intentional
Plaintiff claims that Defendants (particularly Wolfowitz and Rumsfeld) were not acting within the scope of their employment in carrying out the Iraq War because they started planning the war before taking office. There are at least two problems with this argument. First, the alleged tortious acts of aggression—the invasion of Iraq—took place after Defendants occupied public office, and what took place in the late 1990s was not planning, but only advocacy. During most of that time, neither Wolfowitz nor Rumsfeld could have known that he would soon be in a position to help implement his policy preferences. Second, pre-employment statements of intent or belief do not take the later acts of public officials outside the scope of their employment. Under Plaintiff‘s theory, every time a politician honors a campaign promise, she could be considered to be acting outside the scope of her employment. Or, if a passionate advocate for voting rights were appointed to head the Civil Rights Division of the Department of Justice, his or her bringing a lawsuit to enforce voting rights would be viewed as outside the scope of his or her employment.
Plaintiff makes a similar argument with respect to Defendants’ motives, which bear on the third prong of the Restatement test—whether an employee‘s actions were “actuated, at least in part, by a purpose to serve the master.” Plaintiff asserts that she has “alleged that Defendants were solely motivated by personal, selfish purposes,” but that assertion is not borne out by the factual allegations in the second amended complaint. Plaintiff conflates a policy preference or worldview—which is “personal” in the sense that it may be deeply felt or tied to one‘s sense of morality or identity—that motivates one to advocate for certain positions, with a desire to serve one‘s individual interests. A federal official would act out of “personal” motives and not be “actuated . . . by a purpose to serve the master” if, for instance, he used the leverage of his office to benefit a spouse‘s business, paying no heed to the resulting damage to the public welfare. But that is not what Plaintiff has alleged. Rather, she has alleged that Defendants were committed to certain foreign policy objectives in which they believed. Even if those alleged objectives or beliefs were misguided or in contravention of international norms, the motives were not “personal” in the scope-of-employment sense; Defendants’ conduct was “actuated, at least in part, by a purpose to serve the master,” the United States. Ballenger, 444 F.3d at 663.
Finally, Plaintiff argues that Defendants “were not employed to execute a pre-existing war.” But Defendants, as members of the executive branch, were charged broadly with guiding the United States’ foreign
In summary, reading the Westfall Act in a straightforward manner and applying District of Columbia respondeat superior law to the facts alleged in the operative complaint, we hold that Defendants’ alleged actions fell within the scope of their employment.
2. Construing the Westfall Act With an Eye Toward Treaty Obligations
Plaintiff next argues that the Westfall Act should not be interpreted so as to regard as “official” an act condemned by treaty. Plaintiff cites as support for this proposition the United Kingdom case of Regina v. Bartle & the Commissioner of Police for the Metropolis & Others ex parte Pinochet (No. 3), [2000] 1 A.C. 147 (H.L.) (appeal taken from Q.B. Div‘l Ct.) (U.K.), reprinted in 38 I.L.M. 581 (1999), in which the House of Lords ruled that former Chilean leader Augusto Pinochet was not entitled to official immunity for the role that he played in ordering acts of torture and other violations of international law. Many of the Law Lords reasoned that Pinochet‘s acts could not be considered official because the Convention Against Torture7 forbade such acts, and Chile was a party to that treaty. 38 I.L.M. at 595 (opinion of Lord Browne-Wilkinson); id. at 626-27 (opinion of Lord Hope); id. at 638-39 (opinion of Lord Hutton); id. at 642-43 (opinion of Lord Saville). The United States has signed several treaties and other international agreements condemning aggressive war,8 and Plaintiff argues that interpreting the Westfall Act to allow for immunity in this case would conflict with those agreements.
This argument suffers from at least two fatal flaws. First, the equivalent of the “scope of employment” test in the Pinochet case was a creature of international law, not a test set out by a domestic statute. The Law Lords were tasked with determining whether Pinochet‘s actions could be considered “official” as a matter of international law. The effect of a treaty on that international-law analysis has little bearing on that same treaty‘s effect on the scope-of-employment analysis under domestic law.
Second, although we have suggested that ambiguous statutes should be interpreted to avoid conflicts even with non-self-executing treaties,9 Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1114 (9th Cir. 2001), the Westfall Act is not, in any rele
In short, the treaties and charters cited by Plaintiff do not alter our conclusion that the Westfall Act, by its plain terms, immunizes Defendants from suit.
3. Denial of an Evidentiary Hearing
Plaintiff next argues that she should have been afforded an opportunity to challenge the scope certification at an evidentiary hearing. But because the allegations in the operative complaint, taken as true, do not establish that Defendants acted outside the scope of their employment, an evidentiary hearing would be a futile exercise.10 See McLachlan, 261 F.3d at 910-11 (finding no abuse of discretion in district court‘s denial of hearing to challenge scope certification “because[,] even viewing the evidence in the light most favorable to [the plaintiff] and accepting his version of events, dismissal was appropriate“); see also Wuterich, 562 F.3d at 381 (holding that a plaintiff “may, if necessary, attain ‘limited discovery’ to resolve any factual disputes over” the scope-of-employment issue, but only if he or she “alleg[es] sufficient facts that, taken as true, would establish that the defendant‘s actions exceeded the scope of [his or her] employment” (brackets omitted) (quoting Stokes, 327 F.3d at 1214-15)). Accordingly, the district court did not abuse its discretion in denying Plaintiff an evidentiary hearing to challenge the scope certification.11
B. Jus Cogens Violations and Domestic Official Immunity
Finally, Plaintiff argues that Defendants cannot be immune under the Westfall Act because she alleges violations of a jus cogens norm of international law. “[A] jus cogens norm, also known as a ‘peremptory norm’ of international law, ‘is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified
Plaintiff contends that Congress simply cannot immunize a federal official from liability for a jus cogens violation. In effect, Plaintiff argues that (1) there is a jus cogens norm prohibiting the provision of immunity to officials alleged to have committed jus cogens violations,12 and, (2) insofar as the Westfall Act violates that norm, it is invalid. The argument is premised on the idea that “[i]nternational law does not recognize an act that violates jus cogens as a sovereign act,” so that an official who is alleged to have engaged in such an act cannot cloak himself in the immunity of the sovereign. Siderman, 965 F.2d at 718.
We assume, without deciding, that the prohibition against aggression is a jus cogens norm.13 But even assuming that the prohibition against aggression is a jus cogens norm, Plaintiff‘s argument that Congress cannot provide immunity to federal officers in courts of the United States for violations of that norm is in serious tension with our caselaw. In Siderman, we held that Congress could grant a foreign government immunity from suit for alleged violations of the jus cogens norm against torture. Id. at 718-19. After recognizing that immunity might not be available as a matter of customary international law, we noted that we were dealing “not only with customary international law, but with an affirmative Act of Congress“—in that case, the Foreign Sovereign Immunities Act. Id. at 718.
Siderman dealt with foreign sovereign immunity, whereas this case concerns the official immunity of domestic officers. But, if anything, that difference cuts against Plaintiff. The immunity of foreign officials in our courts flows from different considerations than does the immunity of domestic officials. Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 n.5 (D.C. Cir. 1985); accord Universal Consol. Cos. v. Bank of China, 35 F.3d 243, 245 (6th Cir. 1994) (“[D]omestic sovereign immunity and foreign sovereign immunity are two separate concepts, the first based in constitutional law and the second in customary international law.“). Given those different origins, it should be easier for the violation of a jus cogens norm to override foreign sovereign immunity than domestic official immunity. Therefore, our holding in Siderman—that Congress can provide immunity to a foreign government for its jus cogens violations, even when such immunity is inconsistent with principles of international law—compels the conclusion that Congress also can provide im
CONCLUSION
Defendants are entitled to immunity under the Westfall Act. Accordingly, the United States was properly substituted as the sole defendant. Because Plaintiff did not exhaust her administrative remedies against the United States, the district court properly dismissed the case for lack of subject matter jurisdiction.
AFFIRMED.